METLIFE, INC. COMMON STOCK UNDERWRITING AGREEMENT
Exhibit 1.1
METLIFE, INC.
COMMON STOCK
August 2, 2010
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described
Underwriters named in the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
From time to time, MetLife, Inc., a Delaware corporation (the “Company”), proposes to
enter into one or more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex
I hereto, with such additions and deletions as the parties thereto may determine and, subject to
the terms and conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (the “Underwriters” with respect to such
Pricing Agreement and the securities specified therein) the aggregate number of shares of the
Company’s common stock, par value $0.01 per share, identified in Schedule I to the applicable
Pricing Agreement (the “Securities” with respect to such Pricing Agreement).
The terms of any particular issuance of Securities shall be as specified in the Pricing
Agreement relating thereto.
Particular sales of Securities may be made from time to time to the Underwriters of such
Securities, for whom the firms designated as representatives of the Underwriters of such Securities
in the Pricing Agreement relating thereto will act as representatives (the
“Representatives”). The term “Representatives” also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm being designated as
their representative. This Underwriting Agreement shall not be construed as an obligation of the
Company to sell any of the Securities or as an obligation of any of the Underwriters to purchase
the Securities. The obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Securities specified therein.
Each Pricing Agreement shall specify the total number of Securities, the initial public
offering price of such Securities, the purchase price to the Underwriters of such Securities, the
names of the Underwriters of such Securities, the names of the Representatives of such Underwriters
and the number of Securities to be purchased by
each Underwriter. In addition, such Pricing Agreement shall set forth the date, time and
manner of delivery of such Securities and payment therefor. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to produce a written
record of communications transmitted. The obligations of the Underwriters under this Agreement and
each Pricing Agreement shall be several and not joint.
1. Representations and Warranties. The Company represents and warrants to the
Underwriters, and agrees with each of the Underwriters that, unless otherwise specified, as of the
date hereof, as of the Applicable Time and as of the Closing Date, as follows:
(a) The Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (No. 333-147180) under the
Securities Act of 1933, as amended (the “Act”), which has become effective, for the
registration under the Act of the Securities. The Company meets the requirements for use
of Form S-3 under the Act. The Company proposes to file with the Commission pursuant to
Rule 424 under the Act a supplement or supplements to the form of prospectus included in
such registration statement relating to the Securities and the plan of distribution
thereof. Such registration statement, including the exhibits thereto, as amended at the
date of this Agreement, is hereinafter called the “Registration Statement”; the
Registration Statement at the time it originally became effective is herein called the
“Original Registration Statement”; such prospectus in the form in which it appears
in the Original Registration Statement is hereinafter called the “Base Prospectus”;
and such supplemented form of prospectus, in the form in which it shall first be filed with
the Commission pursuant to Rule 424 (including the Base Prospectus as so supplemented), is
hereinafter called the “Final Prospectus.” Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424 is hereinafter called a
“Preliminary Prospectus.” Any reference herein to the Registration Statement, the
Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus (as defined below) or
the Final Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), on or before the date of
this Agreement, or the issue date of the Base Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Final Prospectus, as the case may be; and any reference herein to
the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement,
the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Final
Prospectus shall be deemed to refer to and include any document filed under the Exchange
Act after the date of this Agreement, or the issue date of the Base Prospectus, any
Preliminary Prospectus, the Pricing
2
Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference; each Preliminary Prospectus, the Pricing Prospectus and the
prospectuses filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Act, complied when so filed
in all material respects with the Act and the rules thereunder and each Preliminary
Prospectus, the Pricing Prospectus and the Final Prospectus delivered to the
Representatives for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission via the Electronic Data
Gathering, Analysis and Retrieval (“XXXXX”) system, except to the extent permitted
by Regulation S-T.
(b) (i) The Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time will comply in all material
respects with the applicable requirements of the Act, the Exchange Act and the respective
rules thereunder;
(ii) (A) The Registration Statement does not and will not, as of the
applicable effective date as to each part of the Registration Statement, contain
any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading and (B) the Final Prospectus does not and will not, as of its date and
as of its filing date, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that for each of (A) and (B), the Company
makes no representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus in reliance upon
and in conformity with information relating to such Underwriter furnished in
writing to the Company by any Underwriter expressly for use in the Registration
Statement and the Final Prospectus;
(iii) As of the Applicable Time, the Issuer Free Writing Prospectus(es) (as
defined below) listed on Schedule 1 hereto, if any, the Pricing Prospectus (as
defined below), and the public offering price per share of
$42.00, all considered together
(collectively, the “Disclosure Package”), will not include any untrue
statement of a material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under which they
were made, not misleading; and
(iv) As of the Applicable Time, each Issuer Free Writing Prospectus listed on
Schedule 1 hereto, if any, and Schedule 2 hereto will not conflict with the information contained or
incorporated by reference in the Registration
3
Statement or the Disclosure Package, and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with the Disclosure Package and
any other such Issuer Free Writing Prospectus, in each case as of the Applicable
Time, will not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however, it is
understood and agreed that in no event shall any such Issuer Free Writing
Prospectus, including but not limited to any electronic roadshow, be listed on
Schedule 1 and Schedule 2 hereto unless the Company (i) has consented to the use thereof and (ii)
shall have approved its contents before any such use, in each case in accordance
with the provisions of this Agreement.
As used in this subsection and elsewhere in this Underwriting Agreement:
“Applicable
Time” means 7:00 p.m. (Eastern Time) on
August 2, 2010 or such other
time as agreed by the Company and the Representatives and stated in the applicable Pricing
Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,”
as defined in Rule 433 under the Act (“Rule 433”), relating to the Securities.
“Pricing Prospectus” means the Base Prospectus, as amended or supplemented
(including by any Preliminary Prospectus) immediately prior to the Applicable Time.
(c) At the time the Company or another offering participant first made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company
was not an “ineligible issuer” as defined in Rule 405 under the Act.
(d) (i) At the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) of the Act) relied on the
exemption of Rule 163 of the Act and (iv) as of the date of this Agreement, the
Company was and is a “well known seasoned issuer” as defined in Rule 405 of the Act. The
Registration Statement is an “automatic shelf registration statement,” as defined in
Rule 405 of the Securities Act, that automatically became effective not more than three
years prior to the date hereof; the Company has not received from the Commission any notice
pursuant to
4
Rule 401(g)(2) of the Act objecting to use of the automatic shelf registration
statement and the Company has not otherwise ceased to be eligible to use the automatic
shelf registration statement. The Company has paid or shall pay the required Commission
filing fees relating to the Securities within the time required by Rule 456(b)(1) under the
Act and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(e) Each document incorporated or deemed to be incorporated by reference in the
Registration Statement, the Disclosure Package and the Final Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the Act or the Exchange Act, as applicable.
(f) Neither the Company nor any Significant Subsidiary (as defined below) of the
Company has sustained since the date of the latest audited financial statements included or
incorporated by reference in the Disclosure Package any loss or interference material to
the business of the Company and its subsidiaries considered as a whole, other than as
described in or contemplated by the Disclosure Package, from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree; and, since the respective dates as of which
information is given in the Disclosure Package, other than as described or contemplated in
the Disclosure Package, there has not been any (i) material addition, or
development involving a prospective material addition, to the liability of any Significant
Subsidiary for future policy benefits, policyholder account balances and other claims,
other than in the ordinary course of business, (ii) material decrease in the
surplus of any Significant Subsidiary or material change in the capital stock or other
ownership interests (other than issuances of common stock upon the exercise of outstanding
employee stock options or pursuant to existing employee compensation plans or on the
conversion or exchange of convertible or exchangeable securities outstanding on the date of
the applicable Pricing Agreement) of the Company or any Significant Subsidiary or any
material increase in the long-term debt of the Company or its subsidiaries, considered as a
whole, or (iii) material adverse change, or development involving a prospective
material adverse change, in or affecting the business, financial position, reserves,
surplus, equity or results of operations (in each case considered either on a statutory
accounting or U.S. generally accepted accounting principles (“GAAP”) basis, as
applicable) of the Company and its subsidiaries considered as a whole. As of December 31,
2009, the subsidiaries of the Company that would qualify as a “Significant Subsidiary” of
the Company under Regulation S-X were Metropolitan Life Insurance Company (“MLIC”),
MetLife Insurance Company of Connecticut, MetLife Reinsurance Company of Charleston, Exeter
Reassurance Company, Ltd. and St. Xxxxx Xxxxx Investments Two Limited. For purposes of
this Agreement, the term
5
“Significant Subsidiary” shall mean each of the subsidiaries listed in the preceding
sentence other than St. Xxxxx Xxxxx Investments Two Limited.
(g) The Company and each Significant Subsidiary has good and marketable title in fee
simple to all material real property and good and marketable title to all material personal
property owned by it, in each case free and clear of all liens, encumbrances and defects,
except such as are described in the Disclosure Package or such as would not have a material
adverse effect on the business, financial position, equity, reserves, surplus or results of
operations of the Company and its subsidiaries, considered as a whole (“Material
Adverse Effect”), and do not materially interfere with the use made and proposed to be
made of such property by the Company or any Significant Subsidiary, and any material real
property and material buildings held under lease by the Company or any of its subsidiaries
are held under valid, subsisting and enforceable leases with such exceptions that do not
materially interfere with the use made and currently proposed to be made of such property
and buildings by the Company or any Significant Subsidiary.
(h) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with power and authority (corporate
and other) to own its properties and conduct its business as described in the Disclosure
Package and has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in which its
ownership or lease of property or the conduct of its business requires such qualification
and good standing, except to the extent that the failure to be so qualified and in good
standing would not have a Material Adverse Effect; MLIC was duly converted from a mutual
life insurance company to a stock life insurance company on April 7, 2000 in accordance
with the Plan of Reorganization of MLIC under Section 7312 of the New York Insurance Law;
each Significant Subsidiary is validly existing as a corporation and is in good standing
under the laws of its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described in the Disclosure
Package; and each Significant Subsidiary is duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other jurisdiction
in which its ownership or lease of property or the conduct of its business requires such
qualification and good standing, except to the extent that the failure to be so qualified
and in good standing would not have a Material Adverse Effect.
(i) The Company has the corporate power and authority to execute and deliver this
Agreement, the applicable Pricing Agreement and the Securities and to consummate the
transactions contemplated hereby and thereby.
6
(j) The Company has an authorized capitalization as set forth and described in the
Disclosure Package, and all of the issued shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable; none of the
outstanding shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the Company; except as
disclosed in the Disclosure Package, there are no outstanding options or warrants to
purchase, or any preemptive rights or other rights to subscribe for or to purchase, any
securities or obligations convertible into or any contracts or commitments to sell shares
of the Company’s capital stock or any such options, rights, warrants, convertible
securities or obligations; the description of the Company’s stock option plans and the
options or other rights granted and exercised thereunder set forth in the Disclosure
Package accurately and fairly describe the information required to be shown with respect to
such plans, arrangements, options and rights; except as disclosed in the Disclosure
Package, there are no rights of any person, corporation or other entity to require
registration of any shares of common stock or any other securities of the Company in
connection with the filing of the Registration Statement and the issuance and sale of the
Securities to the Underwriters pursuant to this Agreement and the applicable Pricing
Agreements; all of the issued shares of capital stock or other ownership interests of MLIC
have been duly and validly authorized and issued, are fully paid and nonassessable and are
owned directly or indirectly by the Company free and clear of all liens, encumbrances,
equities or claims.
(k) The Securities have been duly and validly authorized and, when the Securities have
been delivered and paid for pursuant to this Agreement and the applicable Pricing Agreement
on the Closing Date (as defined below), the Securities will have been validly issued, fully
paid and nonassessable, and will conform to the description thereof contained in the
Disclosure Package and the Final Prospectus; no securityholders of the Company have any
preemptive or other similar rights with respect to the Securities.
(l) Each Significant Subsidiary that is required to be organized or licensed as an
insurance company in its jurisdiction of incorporation (each, an “Insurance
Subsidiary” and collectively, the “Insurance Subsidiaries”) is licensed as an
insurance company in its respective jurisdiction of incorporation and is duly licensed or
authorized as an insurer in each other jurisdiction where it is required to be so licensed
or authorized to conduct its business, in each case with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect; except as otherwise described
in the Disclosure Package, each Insurance Subsidiary has all other approvals, orders,
consents, authorizations, licenses, certificates, permits, registrations and qualifications
(collectively, the “Approvals”) of and from all insurance regulatory authorities to
conduct its business, with such exceptions as would not have, individually or in the
7
aggregate, a Material Adverse Effect; there is no pending or, to the knowledge of the
Company, threatened action, suit, proceeding or investigation that could reasonably be
expected to lead to any revocation, termination or suspension of any such Approval, the
revocation, termination or suspension of which would have, individually or in the
aggregate, a Material Adverse Effect; and, to the knowledge of the Company, no insurance
regulatory agency or body has issued any order or decree impairing, restricting or
prohibiting the payment of dividends by any Insurance Subsidiary to its parent which would
have, individually or in the aggregate, a Material Adverse Effect.
(m) The Company and each Significant Subsidiary has all necessary Approvals of and
from, and has made all filings, registrations and declarations (collectively, the
“Filings”) with, all insurance regulatory authorities, all Federal, state, local
and other governmental authorities, all self-regulatory organizations and all courts and
other tribunals, which are necessary to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Disclosure Package,
except where the failure to have such Approvals or to make such Filings would not have,
individually or in the aggregate, a Material Adverse Effect; to the knowledge of the
Company, the Company and each Significant Subsidiary is in compliance with all applicable
laws, rules, regulations, orders, by-laws and similar requirements, including in connection
with registrations or memberships in self-regulatory organizations, and all such Approvals
and Filings are in full force and effect and neither the Company nor any Significant
Subsidiary has received any notice of any event, inquiry, investigation or proceeding that
would reasonably be expected to result in the suspension, revocation or limitation of any
such Approval or otherwise impose any limitation on the conduct of the business of the
Company or any Significant Subsidiary, except as described in the Disclosure Package or
except for any such non-compliance, suspension, revocation or limitation which would not
have, individually or in the aggregate, a Material Adverse Effect.
(n) Each Insurance Subsidiary is in compliance with and conducts its businesses in
conformity with all applicable insurance laws and regulations of its respective
jurisdiction of incorporation and the insurance laws and regulations of other jurisdictions
which are applicable to it, in each case with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect.
(o) Each Significant Subsidiary which is engaged in the business of acting as a
broker-dealer or an investment advisor (respectively, a “Broker-Dealer Subsidiary”
and an “Investment Advisor Subsidiary”) is duly licensed or registered as a
broker-dealer or investment advisor, as the case may be, in each jurisdiction where it is
required to be so licensed or registered to conduct its business, in each case, with such
exceptions as would not have, individually or in
8
the aggregate, a Material Adverse Effect; each Broker-Dealer Subsidiary and each
Investment Advisor Subsidiary has all other necessary Approvals of and from all applicable
regulatory authorities, including any self-regulatory organization, to conduct its
businesses, in each case with such exceptions, as would not have, individually or in the
aggregate, a Material Adverse Effect; except as otherwise described in the Disclosure
Package, none of the Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries has
received any notification from any applicable regulatory authority to the effect that any
additional Approvals from such regulatory authority are needed to be obtained by such
subsidiary in any case where it could be reasonably expected that (x) any of the
Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries would in fact be required
either to obtain any such additional Approvals or cease or otherwise limit engaging in a
certain business and (y) the failure to have such Approvals or limiting such
business would have a Material Adverse Effect; and each Broker-Dealer Subsidiary and each
Investment Advisor Subsidiary is in compliance with the requirements of the broker-dealer
and investment advisor laws and regulations of each jurisdiction which are applicable to
such subsidiary, and has filed all notices, reports, documents or other information
required to be filed thereunder, in each case with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect.
(p) The issue and sale of the Securities pursuant to any Pricing Agreement, and
compliance by the Company with all of the provisions of the Securities, this Agreement and
any Pricing Agreement, and the consummation of the transactions herein and therein
contemplated, will not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, or other agreement or instrument to which the Company or any Significant
Subsidiary is a party or by which the Company or any Significant Subsidiary is bound or to
which any of the property or assets of the Company or any Significant Subsidiary is
subject, or which affects the validity, performance or consummation of the transactions
contemplated by this Agreement, nor will such action result in any violation of any statute
or any order, rule or regulation of any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company or any Significant
Subsidiary or any of their properties, in each case other than such breaches, conflicts,
violations, or defaults which individually or in the aggregate, would not have a Material
Adverse Effect and would not adversely affect the validity or performance of the Company’s
obligations under the Securities, this Agreement and any Pricing Agreement; nor will such
action result in any violation of the provisions of the certificate of incorporation or
by-laws or other charter documents of the Company or any Significant Subsidiary; and no
Approval of or Filing with any such court or insurance regulatory authority or other
governmental agency or body is required for the issue or sale of the
9
Securities, except, assuming the accuracy of the Underwriters’ representation in
Section 9 of this Agreement, (i) the registration under the Act of the Securities
which registration has become effective and (ii) such Approvals or Filings as may
be required under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters.
(q) Other than as set forth in the Disclosure Package, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party
or to which any property of the Company or any of its subsidiaries is subject, challenging
the transactions contemplated by this Agreement and the applicable Pricing Agreements or
which, if determined adversely to the Company or its subsidiaries, could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect or would
materially and adversely affect the ability of the Company to perform its obligations under
this Agreement; and, to the knowledge of the Company, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others other than as set forth in
the Disclosure Package.
(r) Neither the Company nor any Significant Subsidiary is in violation of any of its
certificate of incorporation or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to which it is a party or
by which it is bound or to which any of its property or assets is subject, which violation
or default would have, individually or in the aggregate, a Material Adverse Effect.
(s) The statements set forth in the Disclosure Package and the Final Prospectus under
the caption “Description of Capital Stock,” insofar as they purport to constitute a summary
of the terms of the Securities, fairly summarize such terms in all material respects. The
statements set forth in the Disclosure Package and the Final Prospectus under the caption
“Proposed Acquisition of the Alico Business,” insofar as they purport to constitute a
summary of the Stock Purchase Agreement, dated March 7, 2010 (the “SPA”), among the
Company, ALICO Holdings LLC, a Delaware limited liability company, and American
International Group, Inc., a Delaware corporation, and related agreements in connection
with the acquisition of American Life Insurance Company and certain other companies
(collectively, the “Acquired Company”), fairly summarize such agreements in all
material respects. The discussion set forth in the Disclosure Package and the Final
Prospectus under the caption “Certain Material U.S. Federal Income Tax Considerations for
Non-U.S. Holders,” fairly summarizes in all material respects (subject to the limitations
and qualifications set forth therein) the material United States federal income tax
consequences of the acquisition, ownership and disposition of the Securities.
10
(t) The financial statements of the Company and its consolidated subsidiaries included
or incorporated by reference in the Disclosure Package, together with the related schedules
and notes, comply in all material respects with the requirements of the Act and the
Exchange Act, as applicable, and present fairly in all material respects the financial
position, the results of operations and the changes in cash flows of such entities in
conformity with GAAP at the respective dates or for the respective periods to which they
apply; and such financial statements and related notes and schedules, if any, have been
prepared in accordance with GAAP consistently applied throughout the periods involved (for
the avoidance of doubt, the unaudited pro forma capsule financial information, together
with the related disclosure set forth in the Disclosure Package and the Final Prospectus
under the caption “Summary — Unaudited Pro Forma Capsule Financial Information” shall not
be deemed the financial statements of the Company and its consolidated subsidiaries); and
the unaudited pro forma capsule financial information, together with the related disclosure
set forth in the Disclosure Package and the Final Prospectus under
the caption “Summary —
Unaudited Pro Forma Capsule Financial Information” has been compiled on the pro forma basis
described therein, and the assumptions used in the preparation thereof were reasonable at
the time made, and the adjustments used therein are based upon good faith estimates and
assumptions believed by the Company to be reasonable at the time made.
(u) Deloitte & Touche LLP, which has audited certain consolidated financial statements
of the Company and its subsidiaries, is an Independent Registered Public Accounting Firm as
required by the Act and the rules and regulations of the Commission thereunder.
(v) Neither the Company nor any Significant Subsidiary is, or after giving effect to
the issue and sale of the Securities pursuant to any Pricing Agreement will be, an
“investment company”, as such term is defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”), and the rules and regulations thereunder,
although certain separate accounts of MLIC and of certain Insurance Subsidiaries are
required to register as investment companies under the Investment Company Act.
(w) This Agreement and the applicable Pricing Agreements with respect to the
applicable Securities have been duly authorized, executed and delivered by the Company.
(x) None of the Company or its subsidiaries or, to the best of their knowledge, any of
their directors, officers or affiliates, has taken or will take, directly or indirectly,
any action designed to, or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Securities in violation of Regulation M
under the Exchange Act.
11
(y) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) of the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting
principles. As disclosed in the Company’s Annual Report on Form 10-K for the year ended
December 31, 2009, the Company’s internal control over financial reporting was effective as
of December 31, 2009 and the Company is not aware of any material weaknesses in its
internal control over financial reporting.
(z) The Company and its consolidated subsidiaries employ disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that are
designed to ensure that information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s management, including its principal executive
officer or officers and principal financial officer or officers, as appropriate, to allow
timely decisions regarding disclosure. As disclosed in the Company’s Quarterly Report on
Form 10-Q for the quarter ended June 30, 2010, the Company’s disclosure controls and
procedures were effective as of June 30, 2010 and the Company is not aware of any material
weaknesses in its disclosure controls and procedures.
(aa) No stop order suspending the effectiveness of the Registration Statement has been
issued under the Act and the Registration Statement is not the subject of a pending
proceeding or examination under Section 8(d) or 8(e) of the Act, the Company is not the
subject of a pending proceedings under Section 8A of the Act in connection with the
offering of the Securities and any request on the part of the Commission for additional
information has been complied with.
(bb) Except as would not individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect: (1) all tax returns required to be filed by the
Company or any of its subsidiaries have been timely filed, (2) (x) all
taxes (whether imposed directly or through withholding) including any interest, fine, sales
and use taxes, all taxes which the Company and each of its subsidiaries is obligated to
withhold from amounts owing to employees, creditors and third parties with respect to the
period covered by such tax returns, additions to tax, or penalties applicable thereto due
or claimed to be due from such entities have been timely paid, and (y) no
deficiency assessment with respect to a proposed adjustment of the Company or its
subsidiaries’ federal, state, local or foreign taxes
12
is pending or, to the best of the Company or its subsidiaries’ knowledge, threatened,
in each case of (x) and (y), other than such taxes or adjustments that are being contested
in good faith or for which adequate reserves have been provided, and (3) to the
Company and its subsidiaries’ knowledge, there is no tax lien, whether imposed by any
federal, state, foreign or other taxing authority, outstanding against the assets,
properties or business of the Company or its subsidiaries.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Company agrees, as of the date hereof and as
of the Applicable Time, to sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, as of the date hereof and as of the Applicable Time, to purchase from the Company, at the
purchase price set forth in Schedule II to the applicable Pricing Agreement, the number of
Securities set forth opposite such Underwriter’s name in Schedule I to the applicable Pricing
Agreement.
3. Delivery and Payment. Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form acceptable to the Representatives, shall be
delivered by or on behalf of the Company to the Representatives for the account of such Underwriter
at the office, on the date and at the time specified in the applicable Pricing Agreement (or such
later date not later than five business days after such specified date as the Representatives shall
designate), which date and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time of delivery and payment for the
Securities being herein called the “Closing Date”). Delivery of the Securities shall be
made to the Underwriters for the respective accounts of the several Underwriters against payment by
the several Representatives of the purchase price thereof by wire transfer of Federal (same-day)
funds to the account specified by the Company or as otherwise set forth in the applicable Pricing
Agreement.
4. Company Covenants. The Company agrees with each of the Underwriters of any
Securities:
(a) To prepare the Final Prospectus as amended and supplemented in relation to the
applicable Securities in a form approved by the Representatives and to file timely such
Final Prospectus pursuant to Rule 424(b) under the Act; to make no further amendment or any
supplement to the Registration Statement or Final Prospectus as amended or supplemented
after the Applicable Time and prior to the Closing Date for such Securities unless the
Representatives for such Securities shall have had a reasonable opportunity to review and
comment upon any such amendment or supplement prior to any filing thereof; to advise the
Representatives, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any supplement to the
Final Prospectus or any amended Final Prospectus has been
13
filed and to furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection with the offering
or sale of such Securities and, during such same period, to advise the Representatives,
promptly after it receives notice thereof, of (i) the issuance by the Commission of
any stop order or of any order preventing or suspending the use of the Final Prospectus,
(ii) the suspension of the qualification of such Securities for offering or sale in
any jurisdiction or of the initiation or threatening of any proceeding for any such
purpose, or (iii) any request by the Commission for the amending or supplementing
of the Registration Statement or Final Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or suspending the
use of the Final Prospectus or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order;
(b) To give the Representatives notice of any filings made pursuant to the Exchange
Act or the regulations of the Commission thereunder within forty-eight hours prior to the
Applicable Time; to give the Representatives notice of its intention to make any such
filing from the Applicable Time to the Closing Date and to furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such proposed filing;
(c) Promptly from time to time to take such action as the Representatives may
reasonably request to qualify such Securities for offering and sale under the securities
laws of such jurisdictions as the Representatives may reasonably request and to comply with
such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for so long as may be necessary to complete the distribution of such
Securities, provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation, to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise subject;
(d) To furnish to the Representatives a copy of each proposed Issuer Free Writing
Prospectus prepared by or on behalf of, used by, or referred to by the Company and not to
use or refer to any proposed Issuer Free Writing Prospectus to which the Representatives
reasonably object; if at any time following issuance
14
of an Issuer Free Writing Prospectus there occurred or occurs an event or development
as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with
the information contained in the Registration Statement, the Disclosure Package, the Final
Prospectus or any Preliminary Prospectus, to promptly notify the Representatives and, if
requested by the Representatives, to promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict; provided, however,
that this covenant shall not apply to any statements or omissions in an Issuer Free Writing
Prospectus made in reliance upon and in conformity with information furnished in writing to
the Company by any Underwriter expressly for use therein;
(e) To furnish the Underwriters with copies of any Issuer Free Writing Prospectus or
the Final Prospectus in such quantities as the Representatives may from time to time
reasonably request, and if, at any time prior to the earlier of (i) the completion
of the initial distribution by each of the Underwriters of the Securities purchased by such
Underwriter under this Agreement or (ii) the expiration of nine months after the
date of the Final Prospectus, any event shall have occurred as a result of which any Issuer
Free Writing Prospectus or the Final Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made when such Issuer Free Writing Prospectus or the Final Prospectus were delivered,
not misleading, or, if for any other reason it shall be necessary during such period to
amend or supplement any Issuer Free Writing Prospectus or the Final Prospectus or to file
under the Exchange Act any document incorporated by reference in any Issuer Free Writing
Prospectus or the Final Prospectus in order to comply with the Act or the Exchange Act,
(i) to notify the Representatives and (ii) upon their request to prepare
and furnish without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of an amended Issuer
Free Writing Prospectus or a supplement to the Final Prospectus which will correct such
statement or omission or effect such compliance; and any Issuer Free Writing Prospectus and
the Final Prospectus and any amendments or supplements thereto furnished to the
Representatives shall be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T;
(f) To make generally available to securityholders of the Company as soon as
practicable, but in any event not later than eighteen months after the effective date of
the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement
of the Company and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations thereunder (including, at the option of the
Company, Rule 158);
15
(g) During a period of five years from the effective date of the Registration
Statement, to furnish to the Representatives copies of all reports or other communications
(financial or other) furnished to stockholders of the Company, and to furnish to the
Representatives as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities exchange on
which the Securities or any class of securities of the Company is listed (such financial
statements to be on a consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally or to the
Commission), provided that reports and financial statements furnished to or filed with the
Commission, and publicly available on XXXXX, or furnished on the Company’s website, shall
be deemed to have been furnished to the Representatives under this Section 4(g);
(h) The Company agrees that, unless it obtains the prior consent of the
Representatives, and each Underwriter represents and agrees that, unless it obtains the
prior consent of the Company and the Representatives, it has not made and will not make any
offer relating to the Securities that would constitute an Issuer Free Writing Prospectus
(other than, for the avoidance of doubt, any Bloomberg L.P. or other electronic
communication regarding any preliminary term sheets). Each Underwriter agrees, unless it obtains the prior consent of
the Company and the Representatives, not to take any action that would result in the
Company being required to file with the Commission under Rule 433(d) under the Act a free
writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be
required to be filed by the Company thereunder but for the action of
such Underwriter;
and
(i) For the period specified below (the “Lock-Up Period”), the Company will
not, directly or indirectly, take any of the following actions with respect to the
Securities or any securities convertible into or exchangeable or exercisable for any of the
Securities (collectively, “Lock-Up Securities”): (i) offer, sell, issue,
contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer,
sell, issue, contract to sell, or grant any option, right or warrant to purchase Lock-Up
Securities, (iii) enter into any swap, hedge or any other agreement that transfers,
in whole or in part, the economic consequences of ownership of Lock-Up Securities,
(iv) establish or increase a put equivalent position or liquidate or decrease a
call equivalent position in Lock-Up Securities within the meaning of Section 16 of the
Exchange Act or (v) file with the Commission a registration statement under the Act
relating to Lock-Up Securities, or publicly disclose the intention to take any such action,
in each case, without the prior written consent of Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, except (1)
grants of awards pursuant to the terms of a
16
compensation or benefit plan for directors, employees or other service providers in
effect on the date hereof (each, a “Benefit Plan”), (2) issuances of
Lock-Up Securities (or vesting of payment in the form thereof) pursuant to a Benefit Plan,
(3) acquisition of Lock-Up Securities by a trust related to a Benefit Plan (a
“Benefit Plan Trust”), or by the Company for purposes of issuing Securities
pursuant to the terms of a Benefit Plan or for purposes of a deposit into a Benefit Plan
Trust, and (4) filing with the Commission of (a) a registration statement under the
Act on Form S-8 related to a Benefit Plan or (b) an automatic shelf registration statement
on Form S-3 filed within 30 days prior to the third anniversary of the filing of the
Company’s existing automatic shelf registration statement on Form S-3 (File No.
333-147180); provided, however, that, (A) the 78,239,712 shares of the Company’s common
stock, (B) the 6,857,000 shares of the Company’s Series B Contingent Convertible Junior
Participating Non-Cumulative Perpetual Preferred Stock and (C) the 40,000,000 Equity Units
with an aggregate stated amount at issuance of $3.0 billion, issued to ALICO Holdings LLC
as part of the purchase price to be paid in connection with the acquisition of the Acquired
Company, shall not constitute Lock-Up Securities for purposes of this Section 4(i),
including, any changes in the amount of each such security set forth in (A) through (C)
above as a result of a purchase price adjustment in accordance with the terms of the SPA.
The Lock-Up Period will commence on the date of the Final Prospectus and continue for 60
days after such date or such earlier date to which the Representatives consent to in
writing.
5. Fees and Expenses. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of counsel and accountants to the Company in connection with the registration of the
Securities under the Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Final Prospectus and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing this Agreement, any Pricing Agreement, any Blue Sky Survey and any other documents in
connection with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for offering and sale under state
securities laws and insurance securities laws as provided in Section 4(c) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky Survey; (iv) the filing fees incident to,
and the fees and disbursements of counsel for the Underwriters in connection with, securing any
required review by the Financial Industry Regulatory Authority of the terms of the sale of the
Securities; (v) any fees charged by securities rating services for rating the Securities;
(vi) the cost of preparing the Securities; (vii) the fees and expenses of any
transfer agent and the fees and disbursements of counsel for any such transfer agent in connection
with the Securities issued pursuant to any Pricing Agreement; (viii) any travel
17
expenses of the Company’s officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers of the Securities; and
(ix) all other costs and expenses incident to the performance of the obligations of the
Company hereunder which are not otherwise specifically provided for in this Section. Except as
provided in this Section, and Sections 7 and 10 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of
the Securities by them and any advertising expenses connected with any offers of the Securities
that they may make.
6. Conditions to Underwriters’ Obligations. The obligations of the Underwriters of
any Securities under the Pricing Agreement relating to such Securities shall be subject, in their
discretion, to the condition that all representations and warranties and other statements of the
Company herein or in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof are, at and as of the Closing Date true and correct,
the condition that the Company shall have performed all of its obligations hereunder and under the
Pricing Agreement relating to such Securities to be performed at or before the Closing Date, and
the following additional conditions.
(a) The Final Prospectus shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 4(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of the Commission
shall have been complied with to the Representatives’ reasonable satisfaction;
(b) Debevoise & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to
the Underwriters such written opinion or opinions, dated such Closing Date, with respect to
the incorporation of the Company, the validity of the Securities being delivered on such
Closing Date, the Registration Statement and the Final Prospectus, and such other related
matters as the Underwriters may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to pass upon such
matters;
(c) Xxxxxxx Xxxxxxxxx, Chief Counsel-Public Company and Corporate Law, of the Company,
shall have furnished to the Underwriters his written opinion, dated the Closing Date,
substantially in the form attached hereto as Annex II;
18
(d) Xxxxx & XxXxxxx LLP, counsel for the Company, shall have furnished to the
Underwriters their written opinions, each dated the Closing Date, in form and substance
substantially in the form attached hereto as Annex III-A with respect to certain corporate
and tax matters, and Annex III-B with respect to the Registration Statement, Disclosure
Package and the Final Prospectus;
(e) The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably request,
including, but not limited to, a certificate of the Chief Accounting Officer of the
Company, dated as of the Closing Date, substantially in the form of
Annex IV hereto;
(f) The Company will furnish the Representatives a certificate of the Chief Accounting
Officer of the Company, dated as of the Closing Date, relating to the unaudited capsule pro
forma financial information set forth in the Disclosure Package, together with the related
disclosure set forth in the Disclosure Package and the Final Prospectus under the caption
“Summary — Unaudited Pro Forma Capsule Financial Information,” substantially in the form of
Annex V hereto;
(g) (i) On the date hereof, Deloitte & Touche LLP shall have furnished to the
Representatives a letter, dated the date hereof, in form and substance reasonably
satisfactory to you, confirming that they are independent registered public accountants
with respect to the Company and the Company’s subsidiaries within the meaning of the Act
and the Exchange Act and the respective applicable published rules and regulations
thereunder, and further to the effect set forth in Annex VI hereto, and (ii) on
the Closing Date for the applicable Securities, Deloitte & Touche LLP shall have furnished
to the Representatives a letter, dated the date of delivery thereof, in form and substance
reasonably satisfactory to you, that reaffirms the statements made in the letter furnished
pursuant to subclause (i) of this Section 6(g), except that the specified date referred to
shall be a date not more than three business days prior to the Closing Date;
(h) (i) On the date hereof, PricewaterhouseCoopers LLP shall have furnished to
the Representatives a letter, dated the date hereof, in form and substance reasonably
satisfactory to you, confirming that they are independent registered public accountants
with respect to the Acquired Company and the Acquired Company’s subsidiaries within the
meaning of the Act and the Exchange Act and the respective applicable published rules and
regulations thereunder, and further to the effect set forth in Annex VII hereto, and
(ii) on the Closing Date for the applicable Securities, PricewaterhouseCoopers LLP
shall have furnished to the Representatives a letter, dated the date of delivery thereof,
in form and substance reasonably satisfactory to you, that reaffirms the statements made in
the letter furnished pursuant to subclause (i) of this Section 6(h), except
19
that the specified date referred to shall be a date not more than three business days
prior to the Closing Date;
(i) Neither the Company nor any Significant Subsidiary shall have sustained
(i) since the date of the latest audited financial statements included or
incorporated by reference in the Disclosure Package any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Disclosure Package and (ii)
since the respective dates as of which information is given in the Disclosure Package,
there shall not have been any change in the surplus of any Significant Subsidiary or the
capital stock of the Company or any increase in the long-term debt of the Company and its
respective subsidiaries considered as a whole, or any change, or any development involving
a prospective change, in or affecting the business, financial position, stockholders’
equity or results of operations of the Company and the Significant Subsidiaries considered
as a whole, otherwise than as set forth or contemplated in the Disclosure Package, the
effect of which, in any such case described in clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it impracticable or inadvisable to
proceed with the offering or the delivery of the applicable Securities on the terms and in
the manner contemplated in the Final Prospectus;
(j) After the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the debt securities of the Company or any Significant Subsidiary or the
financial strength or claims paying ability of the Company or any Significant Subsidiary by
A.M. Best & Co., Fitch Ratings, Ltd., Xxxxx’x Investors Service, Inc. or Standard & Poor’s
Ratings Services, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, or shall have
given notice of any intended or potential downgrading of, its rating of any debt security
or the financial strength or the claims paying ability of the Company or any Significant
Subsidiary, the effect of which, in any such case described in clause (i) or (ii), is in
the judgment of the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the applicable Securities on
the terms and in the manner contemplated in the Final Prospectus;
(k) At or after the Applicable Time, there shall not have occurred any of the
following: (i) a change in U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls as would, in the reasonable
judgment of the Representatives, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the applicable Securities, whether in the primary
market or in respect of dealings in the secondary market;
20
(ii) a suspension or material limitation in trading in securities generally on
the New York Stock Exchange; (iii) a suspension or material limitation in trading
in the Company’s securities on the New York Stock Exchange; (iv) a suspension or
material limitation in clearing and/or settlement in securities generally; (v) a
general moratorium on commercial banking activities declared by either Federal or New York
State authorities; or (vi) the material outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a national emergency
or war or any other national or international calamity or emergency (including without
limitation as a result of an act of terrorism) if the effect of any such event specified in
this clause (vi) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the offering or the delivery of the applicable Securities on
the terms and in the manner contemplated in the Final Prospectus;
(l) The Company shall have complied with any request by the Representatives with
respect to the furnishing of copies of the Final Prospectus in compliance with the
provisions of Section 4(e) hereof;
(m) At the Closing Date, the Representatives shall have received a certificate of the
Company, dated as of the Closing Date, to the effect that (i) the representations
and warranties of the Company contained in Section 1 hereof are true and correct in all
respects with the same force and effect as though expressly made at and as of Closing Date
and (ii) the Company has complied in all respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to the Closing
Date; and
(n) As of the date of the Pricing Agreement, the Representatives shall have received
“lock-up agreements,” substantially in the form of Annex
VIII hereto, from the persons and
entities listed on Schedule II to the Pricing Agreement.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement of a material fact
contained in (i) the Registration Statement or any amendment or supplement (when considered
together with the document to which such supplement relates) thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) any Preliminary
21
Prospectus, Pricing Prospectus, any Issuer Free Writing Prospectus or the Final Prospectus, or
any amendment or supplement (when considered together with the document to which such supplement
relates) thereto, or any “issuer information” filed or required to be filed pursuant to Rule 433(d)
under the Act, or arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability (or action in respect thereof) arises out of
or is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any Issuer Free Writing Prospectus, Pricing Prospectus, the
Registration Statement or the Final Prospectus, or any such amendment or supplement(s) in reliance
upon and in conformity with written information furnished to the Company by any Underwriter of the
applicable Securities through the Representatives expressly for use therein.
(b) Each Underwriter will, severally and not jointly, indemnify and hold harmless the Company,
its directors and officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities (or actions in respect thereof) to which the
Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary Prospectus, any Issuer
Free Writing Prospectus, Pricing Prospectus, the Registration Statement, or the Final Prospectus,
or any amendment or supplement (when considered together with the document to which such supplement
relates) thereto, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus,
any Issuer Free Writing Prospectus, Pricing Prospectus, the Registration Statement, the Final
Prospectus or any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the Representatives expressly for
use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such
22
subsection, notify the indemnifying party in writing of the commencement thereof; the omission
so to notify the indemnifying party shall relieve it from any liability which it may have to any
indemnified party under such subsection, to the extent the indemnifying party is actually
materially prejudiced by such omission. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party or any other indemnified party),
and, after notice from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation, unless (i) the indemnifying party and such indemnified
party shall have mutually agreed to the contrary, (ii) the indemnifying party has failed
within a reasonable time to retain counsel reasonably satisfactory to such indemnified party or
(iii) the named parties in any such proceeding (including any impleaded parties) include
both the indemnifying party and such indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing interests between them.
No indemnifying party shall, without the prior written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an unconditional release
of the indemnified party from all liability arising out of such action or claim and (ii)
does not include a statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party. In no event shall the indemnifying party be liable for fees
and expenses of more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same allegations or circumstances.
(d) If the indemnification provided for in this Section 7 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, other than due
to the express provisions thereof, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from the offering of the
applicable Securities to which any such loss, claim, damage or liability (or action in respect
thereof)
23
relates. If, however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and the Underwriters
of the applicable Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Final Prospectus relating to the applicable Securities.
The relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the Underwriters on the
other and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the applicable
Securities underwritten by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of the applicable Securities in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 7 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act. The obligations of the
Underwriters under this Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company
24
(including any person who, with his consent, is named in the Registration Statement as about
to become a director of the Company) and to each person, if any, who controls the Company within
the meaning of the Act.
8. Defaulting Underwriters. (a) If any Underwriter shall default in its obligation
to purchase the Securities which it has agreed to purchase under the Pricing Agreement relating to
such Securities, the Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do not arrange for the
purchase of such Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the Representatives to
purchase such Securities on such terms. In the event that, within the respective prescribed
periods, the Representatives notify the Company that the Representatives have so arranged for the
purchase of such Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Securities, the Representatives or the Company shall have the right to
postpone the Closing Date for such Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration Statement, the Disclosure
Package or the Final Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the Registration Statement,
the Disclosure Package or the Final Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of any
defaulting Underwriter or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of shares of such Securities which remains unpurchased
does not exceed ten percent of the aggregate number of shares of such Securities to be purchased on
such Closing Date, then the Company shall have the right to require each non-defaulting Underwriter
to purchase the aggregate number of shares of such Securities which such Underwriter agreed to
purchase under the Pricing Agreement relating to such Securities and, in addition, to require each
nondefaulting Underwriter to purchase its pro rata share (based on the aggregate number of shares
of such Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the
Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of shares of such
25
Securities which remains unpurchased exceeds ten percent of the aggregate number of shares of such Securities as referred to in subsection (b) above, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Securities shall thereupon terminate, without liability on the part of any nondefaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 5 hereof and the indemnity and contribution agreements in Section 7 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. |
9. Offering Restrictions. Each Underwriter acknowledges, represents and agrees that
it has not offered, sold or delivered and it will not offer, sell or deliver, any of the
Securities, in or from any jurisdiction except under circumstances that are reasonably designed to
result in compliance with the applicable securities laws and regulations thereof. In particular,
each Underwriter acknowledges, represents and agrees as set forth in Annex IX to this Agreement.
The Underwriters agree, severally and not jointly, to use commercially reasonable efforts to follow the written sales and
allocation procedures previously agreed to by the Underwriters and the Company.
10. Survival. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results thereof) made by or
on behalf of any Underwriter or any controlling person of any Underwriter, the Company or any
officer or director or controlling person of the Company and shall survive delivery of and payment
for the Securities.
11. Effect of Termination of Pricing Agreement or Nondelivery of Securities. If any
Pricing Agreement shall be terminated pursuant to Section 8 hereof, the Company shall not then be
under any liability to any Underwriter with respect to the Securities covered by such Pricing
Agreement except as provided in Section 5 and Section 7 hereof; but, if for any other reason,
Securities are not delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through the Representatives for all out-of-pocket expenses, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations
for the purchase, sale and delivery of such Securities, but the Company shall then be under no
further liability to any Underwriter in respect of such Securities except as provided in Section 5
and Section 7 hereof.
12. Reliance upon Representatives. In all dealings hereunder, the Representatives
shall act on behalf of the Underwriters of Securities and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or
given by such of the Representatives, if any, as may be designated for such purpose in the
applicable Pricing Agreements.
26
13. Notices. All statements, requests, notices and agreements hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication; notices to the Underwriters shall be directed to the address of the
respective Representatives as set forth in the applicable Pricing Agreements with a copy to
(i) Debevoise & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of
Xxxxx X. Xxxxxxxx, Esq.; if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration Statement, Attention:
General Counsel, with a copy to Xxxxx & XxXxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX
00000, attention Xxxx X. Xxxxxxxxx, Esq. and Xxxxxxxx Nicenko, Esq. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
14. Successors and Assigns. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the Company, and, to the extent
provided in Sections 7 and 9 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right under or by virtue of
this Agreement or any such Pricing Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. GOVERNING LAW. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
16. Consent to Jurisdiction. The Company agrees that any legal suit, action or
proceeding against the Company brought by any Underwriter or by any person, if any, who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
arising out of or based upon this Agreement or the transactions contemplated hereby may be
instituted in any state or federal court in the Borough of Manhattan, The City of New York, New
York, and, to the fullest extent permitted by applicable law, waives any objection which it may now
or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the
non-exclusive jurisdiction of such courts in any suit, action or proceeding.
17. Counterparts. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute one and the same
instrument.
18. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that
(a) the purchase and sale of the Securities pursuant to this Agreement,
including the determination of the public offering price of the Securities and any related
27
discounts and commissions, is an arm’s-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other hand, (b) in connection with any
offering contemplated by this Agreement and any Pricing Agreement and the process leading to any
such transaction each Underwriter is and has been acting solely as a principal and is not the agent
or fiduciary of the Company, or its stockholders, creditors, employees or any other party,
(c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in
favor of the Company with respect to any such offering contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently advising the Company
on other matters) and no Underwriter has any obligation to the Company with respect to such
offering contemplated hereby except the obligations expressly set forth in this Agreement and any
relevant Pricing Agreement, (d) the Underwriters and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ from those of the
Company, (e) the Company agrees that it will not claim that the Underwriters, or any of
them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty
to the Company, in connection with such transaction or the process leading thereto and (f)
the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to
the offering contemplated hereby and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
19. Entire Agreement. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the Underwriters, or any of them,
with respect to the subject matter hereof.
20. Waiver of Jury Trial. The Company and each of the Underwriters hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in
any legal proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby.
[Signature pages follow]
28
Very truly yours, METLIFE, INC. |
||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: | Senior Vice President and Treasurer | |||
[Signature page to Common Stock Underwriting Agreement]
Accepted as of the date hereof
on behalf of each of the Underwriters:
on behalf of each of the Underwriters:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED |
||||
By: | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Managing Director | |||
[Signature page to Common Stock Underwriting Agreement]
CREDIT SUISSE SECURITIES (USA) LLC |
||||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Managing Director | |||
[Signature page to Common Stock Underwriting Agreement]
DEUTSCHE BANK SECURITIES INC. |
||||
By: | /s/ Xxxxxxx Xxxxxxx | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Managing Director | |||
By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Managing Director | |||
[Signature page to Common Stock Underwriting Agreement]
HSBC SECURITIES (USA) INC. |
||||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Managing Director | |||
[Signature page to Common Stock Underwriting Agreement]
UBS SECURITIES LLC
By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | Managing Director | |||
By: | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Associate Director | |||
[Signature page to Common Stock Underwriting Agreement]
XXXXX FARGO SECURITIES, LLC |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Director | |||
[Signature page to Common Stock Underwriting Agreement]
SCHEDULE 1
TO UNDERWRITING AGREEMENT
Issuer Free Writing Prospectuses included in the Disclosure Package:
None.
SCHEDULE 2
TO UNDERWRITING AGREEMENT
Issuer Free Writing Prospectuses not included in the Disclosure Package:
1. | Electronic road show presentation made available on XxxXxxxxxxx.xxx. | |
2. | Issuer Free Writing Prospectus dated August 2, 2010 containing an article concerning the Chairman of the Board, President and Chief Executive Officer of the Company and the Company published by the Wall Street Journal. |
ANNEX I
PRICING AGREEMENT
August 2, 2010
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.
HSBC Securities (USA) Inc.
UBS Securities LLC
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters
named in Schedule I hereto
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.
HSBC Securities (USA) Inc.
UBS Securities LLC
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters
named in Schedule I hereto
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
MetLife, Inc., a Delaware corporation (the “Company”), proposes, subject to the terms
and conditions stated herein (this “Agreement”) and in the Underwriting Agreement, dated
August 2, 2010 (the “Underwriting Agreement”), to issue and sell to the Underwriters
named in Schedule I hereto (the “Underwriters”) the total number of shares of the Company’s
common stock, par value $0.01 per share specified in Schedule I hereto (the “Firm
Securities”) at the purchase price per share specified in Schedule II hereto. In addition, the
Company proposes, subject to the terms and conditions stated in this Agreement and the Underwriting
Agreement, to grant to the Underwriters the option, exerciseable solely for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities at any time not more than
30 days subsequent to the date of the Final Prospectus, to purchase all or less than all of the
number of shares specified on Schedule II hereto as the “Optional Securities” at the
purchase price per share to be paid for the Firm Securities.
Each of the provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this Agreement, the
Applicable Time and the Closing Date. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein
as therein defined. The Firm Securities and the Optional Securities shall be considered Securities
under the Underwriting Agreement. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Securities
pursuant to the Underwriting Agreement and the address of the Representatives are set forth at
the end of Schedule II hereto.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, the Company agrees to issue, sell and deliver to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the number of Firm Securities set forth opposite the name of such Underwriter in
Schedule I hereto. The date of the issuance, sale and delivery of the Firm Securities is the
“First Closing Date” set forth on Schedule II hereto and such date shall be considered a
Closing Date under the Underwriting Agreement.
If the Representatives give written notice to the Company at any time not more than 30 days
subsequent to the date of the Final Prospectus, then, subject to the terms and conditions set forth
herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company the percentage of the total number of Optional Securities
specified in such notice that equals the percentage set forth opposite such Underwriter’s name on
Schedule I hereto (subject to adjustment by the Representatives to eliminate fractions). Optional
Securities may be purchased by the Underwriters solely for the purpose of covering over-allotments
made in connection with the sale of the Firm Securities. No Optional Securities shall be sold or
delivered unless the Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion thereof may be exercised
at any time and to the extent not previously exercised may be surrendered and terminated at any
time upon notice by the Representatives to the Company. Each time for the delivery of and payment
for the Optional Securities (each, an “Optional Closing Date”) may be the First Closing
Date and each Optional Closing Date, if any, shall be considered a Closing Date under the
Underwriting Agreement. Each Optional Closing Date shall be determined by the Representatives but
shall be not later than five full business days after written notice of election to purchase
Optional Securities is given.
If the foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement
among Underwriters, the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to the authority of the signers
thereof.
[Signature pages follow]
2
Very truly yours, METLIFE, INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
[Signature page to Common Stock Pricing Agreement]
Accepted as of the date hereof
on behalf of each of the Underwriters:
on behalf of each of the Underwriters:
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
XXXXX INCORPORATED
By: | ||||
Name: | ||||
Title: | ||||
[Signature page to Common Stock Pricing Agreement]
CREDIT SUISSE SECURITIES (USA) LLC
By: | ||||
Name: | ||||
Title: | ||||
[Signature page to Common Stock Pricing Agreement]
DEUTSCHE BANK SECURITIES INC.
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
[Signature page to Common Stock Pricing Agreement]
HSBC SECURITIES (USA) INC.
By: | ||||
Name: | ||||
Title: | ||||
[Signature page to Common Stock Pricing Agreement]
UBS SECURITIES LLC
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
[Signature page to Common Stock Pricing Agreement]
XXXXX FARGO SECURITIES, LLC
By: | ||||
Name: | ||||
Title: | ||||
[Signature page to Common Stock Pricing Agreement]
SCHEDULE I
TO PRICING AGREEMENT
TO PRICING AGREEMENT
Number of Firm | ||||||||
Securities to be | Percentage of | |||||||
Underwriters | Purchased | Optional Securities | ||||||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
12,024,825 | 16.03 | % | |||||
Credit Suisse Securities (USA) LLC |
12,024,825 | 16.03 | % | |||||
Deutsche Bank Securities Inc. |
12,024,825 | 16.03 | % | |||||
HSBC Securities (USA) Inc. |
5,789,700 | 7.72 | % | |||||
UBS Securities LLC |
5,789,700 | 7.72 | % | |||||
Xxxxx Fargo Securities, LLC |
5,789,700 | 7.72 | % | |||||
Xxxxxxx X. Xxxxxxxxx & Co., LLC |
777,475 | 1.04 | % | |||||
Macquarie Capital (USA) Inc. |
777,475 | 1.04 | % | |||||
Sterne, Agee & Xxxxx, Inc. |
777,475 | 1.04 | % | |||||
BNP Paribas
Securities Corp. |
1,425,000 | 1.90 | % | |||||
RBS
Securities Inc. |
1,425,000 | 1.90 | % | |||||
SG Americas Securities, LLC |
1,425,000 | 1.90 | % | |||||
Xxxxx and Company, LLC |
1,087,500 | 1.45 | % | |||||
Daiwa Capital Markets America Inc. |
1,087,500 | 1.45 | % | |||||
Xxxxxxx & Partners Securities, LLC |
1,087,500 | 1.45 | % | |||||
PNC Capital Markets LLC |
1,087,500 | 1.45 | % | |||||
Scotia Capital (USA) Inc. |
1,087,500 | 1.45 | % | |||||
UniCredit Capital Markets, Inc. |
1,087,500 | 1.45 | % | |||||
The Xxxxxxxx Capital Group, L.P. |
990,750 | 1.32 | % | |||||
BNY Mellon Capital Markets, LLC |
750,000 | 1.00 | % | |||||
Commerz
Markets LLC |
750,000 | 1.00 | % | |||||
Mitsubishi UFJ Securities (USA), Inc. |
750,000 | 1.00 | % | |||||
Xxxxxxx Xxxxx & Associates, Inc. |
750,000 | 1.00 | % | |||||
Santander Investment Securities Inc. |
750,000 | 1.00 | % | |||||
Loop Capital Markets LLC |
495,000 | 0.65 | % | |||||
Xxxxxxxx Xxxxxx Van LLC |
490,500 | 0.65 | % | |||||
Xxxxxxx Capital Markets, LLC |
490,500 | 0.65 | % | |||||
Xxxxxx & Company |
490,500 | 0.65 | % | |||||
Xxxxxx Xxxxxxx & Co., Inc. |
490,500 | 0.65 | % | |||||
Xxxxxx X. Xxxxxxx & Co., Inc. |
490,500 | 0.65 | % | |||||
CastleOak
Securities, L.P. |
245,250 | 0.33 | % | |||||
MFR Securities, Inc. |
245,250 | 0.33 | % | |||||
Xxxxxxxxx Capital Partners, LLC |
245,250 | 0.33 | % | |||||
Total |
75,000,000 | 100.00 | % |
I-SI-1
SCHEDULE II
TO PRICING AGREEMENT
TO PRICING AGREEMENT
Underwriting Agreement, dated August 2, 2010
Registration Statement No. 333-147180
INITIAL PRICE TO THE PUBLIC: $42.00
PURCHASE PRICE BY UNDERWRITERS: $40.92
NUMBER OF FIRM SECURITIES: 75,000,000
NUMBER OF OPTIONAL SECURITIES: 11,250,000
PARTIES TO LOCK-UP AGREEMENTS:
C. Xxxxxx Xxxxxxxxx
Xxxxx X. Xxxx
Xxxxxxxx Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxx-Xxxxxx
Xxxxxx X. Xxxxx
R. Xxxxx Xxxxxxx
Xxxx X. Xxxxx
Xxxxxx X. Xxxxx, Xx.
Xxxxx X. Xxxxx
Xxxxxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Xxxxx Xxxxxxx, M.D.
Xxxxxx X. Xxxxxxxxxx
Xxxx X. Xxxx
Xxxxx X. Xxxx
Xxxxxxxx Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxx-Xxxxxx
Xxxxxx X. Xxxxx
R. Xxxxx Xxxxxxx
Xxxx X. Xxxxx
Xxxxxx X. Xxxxx, Xx.
Xxxxx X. Xxxxx
Xxxxxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Xxxxx Xxxxxxx, M.D.
Xxxxxx X. Xxxxxxxxxx
Xxxx X. Xxxx
FIRST CLOSING DATE: August 6, 2010
TIME OF FIRST CLOSING: 10 A.M.
LOCATION OF FIRST CLOSING: the offices of Debevoise & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000
I-SII-1
REPRESENTATIVES: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc.,
HSBC Securities (USA) Inc., UBS Securities LLC and Xxxxx Fargo Securities, LLC
ADDRESSES FOR NOTICES, ETC.:
IF TO THE REPRESENTATIVES:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department (Facsimile: 646-855-3073), with a copy to:
ECM Legal (Facsimile: 212-230-8730)
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department (Facsimile: 646-855-3073), with a copy to:
ECM Legal (Facsimile: 212-230-8730)
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ECM Syndicate Desk (Facsimile: 212-797-9344), with a copy to:
General Counsel (Facsimile: 212-797-4564)
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ECM Syndicate Desk (Facsimile: 212-797-9344), with a copy to:
General Counsel (Facsimile: 212-797-4564)
IF TO THE COMPANY:
MetLife, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
I-SII-2
ANNEX II
XXXXXXX XXXXXXXXX OPINION
II-1
ANNEX III
XXXXX & XXXXXXX LLP OPINIONS
ANNEX III-A: OPINION
ANNEX III-B: NEGATIVE ASSURANCE LETTER
III-1
ANNEX IV
METLIFE, INC. CHIEF ACCOUNTING OFFICER CERTIFICATE
IV-1
ANNEX V
METLIFE, INC. CHIEF ACCOUNTING OFFICER CERTIFICATE
V-1
ANNEX VI
DELOITTE & TOUCHE LLP COMFORT LETTER
VI-1
ANNEX VII
PRICEWATERHOUSECOOPERS LLP COMFORT LETTER
VII-1
ANNEX VIII
FORM OF LOCK-UP AGREEMENT
August 2, 2010
MetLife, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.
HSBC Securities (USA) Inc.
UBS Securities LLC
Xxxxx Fargo Securities, LLC,
as Representatives of the several Underwriters named
in the Pricing Agreement attached as Annex 1 to the
Underwriting Agreement referred to below
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Credit Suisse Securities (USA) LLC
Deutsche Bank Securities Inc.
HSBC Securities (USA) Inc.
UBS Securities LLC
Xxxxx Fargo Securities, LLC,
as Representatives of the several Underwriters named
in the Pricing Agreement attached as Annex 1 to the
Underwriting Agreement referred to below
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Dear Sirs:
As an inducement to the Underwriters (as defined in the Underwriting Agreement referred to
herein) to enter into an Underwriting Agreement with MetLife, Inc. and any successor (by merger or
otherwise) thereto (the “Company”) pursuant to which an offering by the Company of the
Company’s common stock, par value $0.01 per share (the “Securities”) is proposed to be made
that is intended to result in an orderly market for the Securities, the undersigned hereby agrees
that during the period specified in the following paragraph (the “Lock-Up Period”), the
undersigned will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any Securities or securities convertible into or exchangeable or exercisable for any
Securities, enter into a transaction which would have the same effect, or enter into any swap,
hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of
ownership of the Securities, whether any such aforementioned transaction is to be settled by
delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or to enter into any such
transaction, swap, hedge or other arrangement, without, in each case, the prior written consent of
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”). In addition, the
undersigned agrees that, without the prior written consent of Xxxxxxx Xxxxx, it will not,
during the Lock-Up Period, make any demand for or exercise any right with respect to, the
registration of any Securities or any security convertible into or exercisable or exchangeable for
the Securities.
VIII-1
The Lock-Up Period will commence on the date of this Lock-Up Agreement and continue through
and include the date 60 days after the public offering date set forth on the final prospectus used
to sell the Securities (the “Public Offering Date”) pursuant to the Underwriting Agreement,
to which you are or expect to become parties.
A transfer of Securities to a family member, trust or charitable organization may be made,
provided that (i) the transferee agrees to be bound in writing by the terms of this
Agreement prior to such transfer, (ii) such transfer shall not involve a disposition for
value and (iii) no filing by any party (donor, donee, transferor or transferee) under the
Securities Exchange Act of 1934 (the “Exchange Act”) shall be required or shall be
voluntarily made in connection with such transfer (other than a filing on a Form 5 made after the
expiration of the Lock-Up Period).
Notwithstanding anything herein to the contrary, (a) if the undersigned has entered
into a written trading plan established pursuant to Rule 10b5-1 of the Exchange Act prior to the
commencement of the Lock-Up Period, the undersigned may sell any Securities pursuant to such plan
during the Lock-Up Period without any notice to Xxxxxxx Xxxxx, (b) the undersigned may
enter into one or more written trading plans established pursuant to Rule 10b5-1 of the Exchange
Act during the Lock-Up Period, but may not sell any Securities or securities convertible into or
exchangeable or exercisable for any Securities pursuant to such plan during the Lock-Up Period, and
(c) the undersigned may exercise stock options or otherwise receive Securities from the
Company during the Lock-Up Period. Any Securities received upon exercise of options granted to the
undersigned or otherwise received by the undersigned from the Company will also be subject to this
Agreement.
In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby
authorized to decline to make any transfer of shares of Securities if such transfer would
constitute a violation or breach of this Agreement.
This Agreement shall be binding on the undersigned and the successors, heirs, personal
representatives and assigns of the undersigned. This Agreement shall lapse and become null and
void if the Public Offering Date shall not have occurred on or before September 30, 2010. This
agreement shall be governed by, and construed in accordance with, the laws of the State of New
York.
Very truly yours, | ||||
[Name of stockholder / director / officer] |
VIII-2
ANNEX IX
OFFERING RESTRICTIONS
European Economic Area
In relation to each Member State of the European Economic Area (the “EEA”) which has
implemented the Prospectus Directive (each, a “Relevant Member State”) an offer to the public of
any shares which are the subject of the offering contemplated by this prospectus may not be made in
that Relevant Member State, except that an offer to the public in that Relevant Member State of any
shares may be made at any time under the following exemptions under the Prospectus Directive, if
they have been implemented in that Relevant Member State:
(a) to legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely to invest
in securities;
(b) to any legal entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more than
€43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last
annual or consolidated accounts;
(c) by the underwriters to fewer than 100 natural or legal persons (other than
“qualified investors” as defined in the Prospectus Directive) subject to obtaining the
prior consent of the representatives for any such offer; or
(d) in any other circumstances falling within Article 3(2) of the Prospectus
Directive;
provided, that no such offer of shares shall result in a requirement for the publication by
MetLife, Inc. or any representative of a prospectus pursuant to Article 3 of the Prospectus
Directive.
Any person making or intending to make any offer of shares within the EEA should only do so in
circumstances in which no obligation arises for us or any of the underwriters to produce a
prospectus for such offer. Neither we nor the underwriters have authorized, nor do they authorize,
the making of any offer of shares through any financial intermediary, other than offers made by the
underwriters which constitute the final offering of shares contemplated in this prospectus.
For the purposes of this provision, and your representation below, the expression an “offer to
the public” in relation to any shares in any Relevant Member State means the communication in any
form and by any means of sufficient information on the terms of
IX-1
the offer and any shares to be offered so as to enable an investor to decide to purchase any shares, as the same may be varied in
that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant
Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
Each person in a Relevant Member State who receives any communication in respect of, or who
acquires any shares under, the offer of shares contemplated by this prospectus supplement will be
deemed to have represented, warranted and agreed to and with MetLife, Inc. and each underwriter
that:
(A) it is a “qualified investor” within the meaning of the law in that Relevant Member
State implementing Article 2(1)(e) of the Prospectus Directive; and
(B) in the case of any shares acquired by it as a financial intermediary, as that term
is used in Article 3(2) of the Prospectus Directive, (i) the shares acquired by it in the
offering have not been acquired on behalf of, nor have they been acquired with a view to
their offer or resale to, persons in any Relevant Member State other than “qualified
investors” (as defined in the Prospectus Directive), or in circumstances in which the prior
consent of the representatives has been given to the offer or resale; or (ii) where shares
have been acquired by it on behalf of persons in any Relevant Member State other than
qualified investors, the offer of those shares to it is not treated under the Prospectus
Directive as having been made to such persons.
United Kingdom
In the United Kingdom, this prospectus supplement (and accompanying prospectus)
is being distributed only to, and is directed only at, and any offer subsequently made may only be
directed at persons who are “qualified investors” (as defined in the Prospectus Directive) (i) who
have professional experience in matters relating to investments falling within Article 19 (5) of
the Financial Services and Markets Xxx 0000 (Financial Promotion) Order 2005, as amended (the
“Order”) and/or (ii) who are high net worth companies (or persons to whom it may otherwise be
lawfully communicated) falling within Article 49(2)(a) to (d) of the Order (all such persons
together being referred to as “relevant persons”). This document must not be acted on or relied on
in the United Kingdom by persons who are not relevant persons. In the United Kingdom, any
investment or investment activity to which this document relates is only available to, and will be
engaged in with, relevant persons.
IX-2
Switzerland
This prospectus supplement (and accompanying prospectus), as well as any other material
relating to the shares which are the subject of the offering contemplated by this prospectus
supplement (and accompanying prospectus), do not constitute an issue
prospectus pursuant to Article 652a and/or 1156 of the Swiss Code of Obligations. The shares will not be listed on the SIX Swiss
Exchange and, therefore, the documents relating to the shares, including, but not limited to, this
document, do not claim to comply with the disclosure standards of the listing rules of SIX Swiss
Exchange and corresponding prospectus schemes annexed to the listing rules of the SIX Swiss
Exchange. The shares are being offered in Switzerland by way of a private placement, i.e., to a
small number of selected investors only, without any public offer and only to investors who do not
purchase the shares with the intention to distribute them to the public. The investors will be
individually approached by the issuer from time to time. This document, as well as any other
material relating to the shares, is personal and confidential and do not constitute an offer to any
other person. This prospectus supplement (and accompanying prospectus) may only be used by those
investors to whom it has been handed out in connection with the offering described herein and may
neither directly nor indirectly be distributed or made available to other persons without express
consent of the issuer. It may not be used in connection with any other offer and shall in
particular not be copied and/or distributed to the public in (or from) Switzerland.
Dubai International Financial Centre
This prospectus supplement (and accompanying prospectus) relates to an exempt offer in
accordance with the Offered Securities Rules of the Dubai Financial Services Authority. This
prospectus supplement (and accompanying prospectus) is intended for distribution only to persons of
a type specified in those rules. It must not be delivered to, or relied on by, any other person.
The Dubai Financial Services Authority has no responsibility for reviewing or verifying any
documents in connection with exempt offers. The Dubai Financial Services Authority has not
approved this document nor taken steps to verify the information set out in it, and has no
responsibility for it. The shares which are the subject of the offering contemplated by this
prospectus may be illiquid and/or subject to restrictions on their resale. Prospective purchasers
of the shares offered should conduct their own due diligence on the shares. If you do not
understand the contents of this document you should consult an authorized financial adviser.
IX-3
Australia
This prospectus supplement (and the accompanying prospectus) is not a formal disclosure
document and has not been, nor will be, lodged with the Australian Securities and Investments
Commission. This prospectus supplement (and the accompanying prospectus) does not purport to
contain all information that investors or their professional advisers would expect to find in a
prospectus or other disclosure document (as defined in the Corporations Xxx 0000 (Australia)) for
the purposes of Part 6D.2 of the Corporations Xxx 0000 (Australia) or in a product disclosure
statement for the purposes of Part 7.9 of the Corporations Xxx 0000 (Australia), in either case, in
relation to the common stock.
The common stock is not being offered in Australia to “retail clients” as defined in sections
761G and 761GA of the Corporations Xxx 0000 (Australia). This offering is being made in Australia
solely to “wholesale clients” for the purposes of section 761G of the Corporations Act 2001
(Australia) and, as such, no prospectus, product disclosure statement or other disclosure document
in relation to the common stock has been, or will be, prepared.
This prospectus supplement (and the accompanying prospectus) does not constitute an offer in
Australia other than to wholesale clients. By submitting an application for the common stock, you
represent and warrant to us that you are a wholesale client for the purposes of section 761G of the
Corporations Xxx 0000 (Australia). If any recipient of this prospectus supplement (and the
accompanying prospectus) is not a wholesale client, no offer of, or invitation to apply for, the
common stock shall be deemed to be made to such recipient and no applications for the common stock
will be accepted from such recipient. Any offer to a recipient in Australia, and any agreement
arising from acceptance of such offer, is personal and may only be accepted by the recipient. In
addition, by applying the common stock you undertake to us that, for a period of 12 months from the
date of issue of the common stock, you will not transfer any interest in the common stock to any
person in Australia other than to a wholesale client.
Hong Kong
The common stock may not be offered or sold by means of any document other than (i) in
circumstances which do not constitute an offer to the public within the meaning of the Companies
Ordinance (Cap.32, Laws of Hong Kong), or (ii) to “professional investors” within the meaning of
the Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) and any rules made thereunder, or
(iii) in other circumstances which do not result in this prospectus supplement or the accompanying
prospectus being a “prospectus” within the meaning of the Companies Ordinance (Cap.32, Laws of Hong
Kong), and no advertisement, invitation or document relating to the common stock may be issued or
may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong
or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by,
the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with
respect to the common stock which is or is intended to be disposed of
only to persons outside Hong Kong or only to “professional investors” within the meaning of the Securities and Futures
Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder.
IX-4
Japan
The common stock has not been and will not be registered under the Financial Instruments and
Exchange Law of Japan (Law Xx. 00 xx 0000 xx Xxxxx, as amended) (“FIEL”) and the underwriters will
not offer or sell the common stock directly or indirectly, in Japan or to, or for the benefit of,
any resident of Japan (which term as used herein means, unless otherwise provided herein, any
person resident in Japan, including any corporation or other entity organized under the laws of
Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to a resident
of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in
compliance with, the FIEL and any other applicable laws, regulations and ministerial guidelines of
Japan.
Singapore
Neither this prospectus supplement nor the accompanying prospectus has been registered as a
prospectus with the Monetary Authority of Singapore. Accordingly, none of this prospectus
supplement, the accompanying prospectus and any other document or material in connection with the
offer or sale, or invitation for subscription or purchase, of the common stock may be circulated or
distributed, nor may the common stock be offered or sold, or be made the subject of an invitation
for subscription or purchase, whether directly or indirectly, to persons in Singapore other than
(i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289
of Singapore (the “SFA”), (ii) to a relevant person, or any person pursuant to Section 275(1A), and
in accordance with the conditions, specified in Section 275 of the SFA or (iii) otherwise pursuant
to, and in accordance with the conditions of, any other applicable provision of the SFA, in each
case subject to compliance with conditions set forth in the SFA.
Where the common stock is subscribed or purchased under Section 275 by a relevant person which
is: (a) a corporation (which is not an accredited investor) the sole business of which is to hold
investments and the entire share capital of which is owned by one or more individuals, each of whom
is an accredited investor or (b) a trust (where the trustee is not an accredited investor) whose
sole purpose is to hold investments and each beneficiary is an accredited investor, shares,
debentures and units of shares and debentures of that corporation or the beneficiaries’ rights and
interest in that trust shall not be transferable for 6 months after that corporation or that trust
has acquired the common stock under Section 275 except: (1) to an institutional investor under
Section 274 of the SFA or to a relevant person, or any person pursuant to Section 275(1A), and in
accordance with the conditions, specified in Section 275 of the SFA; (2) where no consideration is
given for the transfer; or (3) by operation of law.
IX-5